Fair Work Ombudsman v Hu

The rule in Blatch v Archer 49 The final issue raised for resolution in the Appellant's written Outline of Submissions is whether the primary Judge erred in applying "the principles in Jones v Dunkel too narrowly" and erred in not applying "the correct approach", namely the approach set forth in Blatch v Archer (1774) 1 Cowp 63, (1774) 98 ER 969 ("Blatch v Archer"). 50 The oft-repeated principle set forth in Jones v Dunkel (1959) 101 CLR 298 at 308 ("Jones v Dunkel") was expressed by Kitto J as follow: ... any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put a true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. 51 The "rule" in Blatch v Archer (1774) 1 Cowp 63 at 65, (1774) 98 ER 969 at 970 sought to be invoked by the Fair Work Ombudsman was there expressed by Lord Mansfield as follows: … '[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted'. These observations have been applied in other areas of the law, including industrial law: e.g., United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408 at [74], (2011) 198 FCR 514 at 542 per McKerracher J. A similar expression of principle was expressed, albeit in a family law context, as follows by Brennan and McHugh JJ in G v H (1994) 181 CLR 387 at 391 to 392: … when a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party's ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response. 52 In commenting upon both the decision in Jones v Dunkel and that in Blatch v Archer, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Australian Securities and Investments Commission v Hellicar [2012] HCA 17, (2012) 247 CLR 345 ("Hellicar"), in reversing a decision of the New South Wales Court of Appeal, observed at 405 to 406: [145] What may perhaps be seen as constituting a third strand in the Court of Appeal's reasoning was its treatment of the well-known decision of this court in Jones v Dunkel. The Court of Appeal… treated what it described as "the principle in Jones v Dunkel" as being "a 'particular application of [the] principle' in Blatch". The Court of Appeal considered, however, that what it found to be ASIC's breach of a duty to call Mr Robb took matters beyond what was decided in Jones v Dunkel. The court said that: [t]he failure to call Mr Robb means more than disinclination to draw inferences favourable to ASIC's case. Failure of a party with the onus of proof to call an available and important witness, the more so if the failure is in breach of the obligation of fairness, counts against satisfaction on the balance of probabilities. (footnotes omitted) Their Honours went on to conclude at 412 to 413: The cogency of proof [164] The Court of Appeal concluded that ASIC's failure to call Mr Robb had "consequences for the cogency of ASIC's case". By this the Court of Appeal meant that the cogency of ASIC's proof was diminished. [165] Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC. [166] Lord Mansfield's dictum in Blatch v Archer that "[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted" is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for "it would have been very improper to have called" the person whose account of events was not available to the court. [167] This court's decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. … [168] The Court of Appeal concluded that ASIC's not calling Mr Robb founded an inference that his evidence "would not have assisted the ASIC case". There was no basis for drawing any inference that Mr Robb would have given evidence adverse to ASIC's case. More particularly, there was no basis for concluding that it was more likely than not that he would say that the minutes whose preparation he had supervised were false. The most that could be inferred from Mr Robb not being called by ASIC was that he could not give evidence, from his own independent recollection, of what had happened at the February board meeting. He was not "a person presumably able to put the true complexion on the facts relied on [by ASIC] as the ground" for any inference that ASIC sought to have drawn from the evidence. And contrary to the conclusions reached by the Court of Appeal, what Lord Mansfield said in Blatch v Archer permitted no larger conclusion. (footnotes omitted) In issue in that proceeding was whether the directors of a company had approved the release of an announcement to the Australian Stock Exchange which was misleading. Questions arose as to whether minutes of a meeting at which the announcement had been said to have been tabled and approved were false. Mr Robb was a solicitor retained by the company. 53 The result sought to be achieved by the Fair Work Ombudsman, in the reliance placed upon Blatch v Archer, was to impugn the conclusion of the primary Judge that an inference should not be drawn that the Marland parties knew that the employees were employed on a casual basis. Mr Marland was not called as a witness. Nor was Mr McKeon. The failure to call Mr Marland or Mr McKeon, the Fair Work Ombudsman contended, supported an inference - contrary to that drawn by the primary Judge - that the Marland parties did, in fact, know that the employees were employed on a casual basis. 54 If recourse is had to Jones v Dunkel, it is accepted that the statements in that case "give no support to the proposition that the failure to call a witness may itself provide the basis of an adverse inference. An inference must be founded in evidence": Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 124 per Wilcox J. Similarly, in Marku v Minister for Justice [2015] FCA 831 at [68], (2015) 237 FCR 580 at 601 Kenny J observed, in part, that "[w]hile the principle may operate to make evidence or inferences that may be drawn from admissible evidence more probable, the principle does not permit a failure to call a witness … to fill gaps in the evidence or transform conjecture into inference". A failure to call a witness, it is thus accepted, cannot "fill gaps in the evidence, or convert conjecture and suspicion into inference": The Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20 at [56] per Murrell CJ, Burns and Perry JJ ("Council of the Law Society of the ACT"). 55 On the facts of the present case, it leads to no different result whether recourse is had to the observations of Kitto J in Jones v Dunkel or those of Lord Mansfield in Blatch v Archer. 56 Although on the facts of the present case considerable reservation may be expressed as to whether an adverse inference was available to be drawn against Mr Marland, by reason of him being in possession of sufficient information to arouse a not inconsiderable suspicion as to the employees being casual employees, and thus a "basis for concluding" (cf. Hellicar [2012] HCA 17 at [168], (2012) 247 CLR at 413) that he in fact knew that the employees were casual employees, neither Blatch v Archer nor Jones v Dunkel can be relied upon to "convert conjecture and suspicion into inference": cf. Council of the Law Society of the ACT [2015] ACTCA 20 at [56]. The more so is this the case in the present appeal in circumstances where there was no comparable basis for imposing upon the Respondents the same expectation as to "fairness" in the conduct of the litigation as was assumed (but not decided) to be imposed upon the Australian Securities and Investments Commission in Hellicar: [2012] HCA 17 at [147] and [152], (2012) 247 CLR at 406 to 407. 57 Unlike the position in Hellicar, however, was the fact that Mr Marland - unlike Mr Robb in the Hellicar case - was potentially in a position "to put a true complexion on the facts relied on as the ground for the inference" (cf. Jones v Dunkel). But, other than by way of inference, there was no basis in the available evidence upon which a finding could be made that Mr Marland knew that the employees were casual employees. In the absence of a basis upon which such an inference was available, no question arose as to an ability to more easily drawn that inference because Mr Marland was not called as a witness. Whatever inferences were available remained inferences founded upon conjecture as to what Mr Marland may or may not have said as to his state of knowledge. It is mere conjecture as to whether Mr Marland may have been able to put a different complexion on what was said at the 7 February 2014 meeting. On his account, albeit an account that was not accepted by the primary Judge, he was not even present at that meeting. On one view of the evidence, the only available inference to be drawn from the exchange that occurred at that meeting was that Mr Marland either could not recall what was said or was not in a position to put in question the account given by Inspector De Iacovo. On either approach, the Fair Work Ombudsman's account of the evidence prevailed. A more broadly felt suspicion drawn from evidence, other than what was said at the 7 February 2014 meeting, cannot take the place of admissible evidence. Certainly, after the meeting, the exchange between Inspector De Iacovo and Mr Marland when the Inspector was having "a look around the farm" only evidenced a lack of knowledge on the part of Mr Marland: at para [181]. The PayCheck Plus document sent by Inspector De Iacovo to Mr Marland in February 2014 where the "calculation of pay rates were done by adding a casual loading" (at para [225]) went some distance further in perhaps putting Mr Marland on notice. But that, on its own and in the context of the other findings made by the primary Judge, provides an inadequate basis upon which any inference should be drawn that Mr Marland knew the employees were casual employees. 58 This Court was not taken by Counsel for the Fair Work Ombudsman to the decision in Hellicar in any meaningful way and thus did not have the benefit of such assistance as may have been provided by Counsel for the Appellant with respect to the potential application of their Honours' observations in that case to the facts of the present case. 59 The same conclusions are expressed with respect to the submissions of the Fair Work Ombudsman regarding the failure to call Mr McKeon. 60 The failure to call Mr Marland and/or Mr McKeon cannot be relied upon as a basis to attribute to Marland Mushrooms knowledge that the employees were employed on a casual basis. The observations of Lord Mansfield, with respect, are not to be construed as permitting an adverse inference to be drawn merely because it was "in the power" of the Respondents to call either of these two witnesses. 61 The final issue raised by the Fair Work Ombudsman is thus, again, resolved in favour of the Respondents. 62 It is unnecessary to resolve the Amended Notice of Contention.

The proper construction of cl 15 65 The terms of cl 15 of the Award are set out in the joint judgment above at [13]. 66 The primary Judge accepted (at [48]) the appellant's ("FWO") construction that an employer contravenes cl 15 by entering into an agreement which fixes a piecework rate that does not enable the average competent employee to earn at least the piecework rate that meets the requirements in cl 15.2 and cl 15.3 of the Award ("the prescribed piecework rate"). His Honour rejected the FWO's contention that a failure to make an agreement which provided for the prescribed piecework rate constituted an ongoing contravention of cl 15 ([136]-[137]). 67 However, the primary Judge construed cl 15 as not merely prohibiting an employer from entering an agreement with a non-compliant piecework rate, but also as requiring "the employer to pay at least the minimum piecework rate that ought to have been fixed" (at [138]). For that conclusion, his Honour relied on the terms of cl 15.2 that, "The piecework rate agreed is to be paid for all work performed in accordance with the piecework agreement", in respect of which his Honour said: [138] … The word "agreed" is apparently intended to have the same meaning as "fixed", but, leaving that aside, the phrase is ambiguous. It could require that the piecework rate that has been agreed, regardless of whether it is inadequate, must be paid for all work performed in accordance with the agreement. Alternatively, it could mean the piecework rate that has been agreed and is at least at the minimum level must be paid for all work performed in accordance with the agreement (emphasis added). [139] In my opinion, the latter construction is to be preferred. The former construction, which could require an employer to pay a piecework rate fixed at a level which does not comply with cl 15, is improbable. Further, that construction would mean that where a piecework rate was initially fixed at an adequate level, but where the piecework rate later becomes inadequate, there is no obligation on the employer to adjust the rate. That would mean, for example, that if the minimum hourly rate prescribed under cl 14.1 of the Award increased during the term of an employment agreement, there would be no corresponding obligation on the employer to increase the piecework rate. Such an outcome cannot have been intended. [140] I recognise the force of the intervener's submission that this construction produces an inconvenient outcome for employers. The piecework provisions of the Award, seen as a whole, attempt to balance the interests of employers with the risk that employees will be left vulnerable to exploitation. However, the requirements to fix and pay at least minimum piecework rates are protective of employees, and cl 15.2 should be construed in light of that protective purpose. Where the piecework rate was adequate when the agreement was entered, but becomes inadequate during the term of the agreement, it is a contravention of cl 15.2 of the Award for an employer to continue to pay only the agreed, inadequate piecework rate. Contrary to the intervener's submission, that does not guarantee any employee a minimum wage, but it does guarantee an adequate piecework rate. Such contraventions are capable of fitting the FWO's description of "ongoing" throughout the period during which the employee is paid an inadequate piecework rate. 68 Although holding that cl 15 could be contravened by the employer for failing to pay the "piecework rate that is at least at the minimum level", the primary Judge did not consider whether contraventions of that kind had been committed by the employer HRS Country Pty Ltd ("HRS Country") because, as he stated at [141], the FWO had only alleged that HRS Country had contravened cl 15 "by entering into employment agreements that fixed inadequate piecework rates …" (emphasis in original). 69 The primary Judge then turned to the FWO's submission as to the consequence of an employer entering into an agreement which failed to fix what I have called the "prescribed piecework rate". His Honour recounted that in that circumstance: [142] … The FWO alleges that the employees were therefore entitled to be paid in accordance with the non-pieceworker provisions of the Award. The FWO alleges that HRS Country contravened the Award by: failing to pay the hourly rates prescribed under cl 14.1 and cl 16.1; failing to pay the public holiday rates required by cl 28.3; failing to pay the casual loading required under cl 10.4; and failing to provide the employees with the paid rest breaks required by cl 23.2. … [144] The FWO submits that a person is not a "pieceworker" merely because he or she is paid a "piecework rate". The FWO points to the protective purpose of the minimum piecework rate and the mandatory language of cl 15.2 of the Award. The FWO submits that in light of that purpose and mandatory language, if an inadequate piecework rate is fixed, employees are entitled to be treated as if they had not entered into the purported piecework agreement at all. The submission continues that in order to be a pieceworker, the employee must be entitled under an agreement to a piecework rate that complies with cl 15. If the employee is not a pieceworker, the employee must be paid the hourly rates and other entitlements prescribed under the Award. 70 The primary Judge rejected that submission and preferred the construction of the Marland parties that "… while an employee on an inadequate piecework rate is entitled to be paid at least the minimum piecework rate, the employee is not entitled to be paid the hourly rates and other entitlements of non-pieceworkers under the Award" (at [145]). 71 The primary Judge's reasons for preferring that construction were given at [145]-[148]: [145] The Marland parties and the intervener submit that any employee on any piecework rate, adequate or inadequate, is a pieceworker. They submit that while an employee on an inadequate piecework rate is entitled to be paid at least the minimum piecework rate, the employee is not entitled to be paid the hourly rates and other entitlements of non-pieceworkers under the Award. [146] I prefer this construction. It is supported by the language and context of cl 15. Clause 15.1 provides that an employer and an employee may enter into an agreement for the employee to be paid a piecework rate. It continues, "An employee on a piecework rate is a pieceworker". The FWO would read that phrase as, "An employee on a piecework rate that complies with cl 15.2 is a pieceworker", but that reading is not supported by the clear language. Further, nothing in the language or context of cl 15 indicates that provisions such as cl 15.4 and 15.5 will cease to apply where the piecework rate is inadequate. [147] The FWO's submission is that if an inadequate piecework rate is fixed, employees should be treated as if they have not entered into the piecework agreement at all. Where legislation provides for a penalty in the event of non-compliance with a statutory command (as is the case with s 45 of the FWA) it is presumed that the statutory penalty is intended to cover the field in terms of consequences, and not render acts in contravention of the statute illegal or invalid: Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 at 219-220, 226-227 and 244; Gnych v Polish Club Ltd (2015) 255 CLR 414 at 427. The FWO's submission that the piecework agreement is to be treated as having no effect conflicts with this principle. [148] The protective purpose of cl 15 does not assist the FWO's argument. That protective purpose can be served without the rather artificial construction contended for. If the piecework rate fixed under an agreement is inadequate, employees can be protected by an award of compensation calculated as the difference between the piecework rate that was paid and the piecework rate that ought to have been paid. 72 As I understand [148] in the context of the primary Judge's conclusion at [139], the primary Judge reasoned that the protective purpose of cl 15 was accommodated by cl 15 providing employees with an entitlement to be paid the prescribed piecework rate "at least at the minimum level" and that, as any underpayments could be recovered, there was no need to construe the Award as requiring that the employee be paid entitlements conferred by cll 14.1, 16.1, 28.3, 10.4 and 23.2 which the primary Judge referred to as "the non-pieceworker provisions of the Award". 73 The Award is a modern award. It was first made by the predecessor to the Fair Work Commission, the Australian Industrial Relations Commission ("AIRC"), pursuant to the award modernisation process provided in Part 10A of the former Workplace Relations Act 1996 (Cth) ("WR Act"). Modern awards made under the award modernisation process are deemed to be modern awards under the FW Act. For present purposes, it is not necessary to refer to the award modernisation process in any detail. It is sufficient to observe that the AIRC was, in the award modernisation process, required to comply with s 576A(2) of the WR Act which required, inter alia, that "together with any legislated employment standards, [modern awards] must provide a fair minimum safety net of enforceable terms and conditions of employment for employees". That requirement is reflected in s 134(1) of the FW Act which requires that the FWC "must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions…" and also s 138 of the FW Act. Although the award modernisation process largely pre-dated the enactment of the FW Act, the commencement of the operation of modern awards was timed to coordinate with the commencement of the scheme for award regulation enabled by the FW Act (see further the discussion in National Retail Association v Fair Work Commission and Another (2014) 225 FCR 154 at [2] and [9], Collier, Bromberg and Katzmann JJ). 74 In that context, the Award must be construed as prescribing the minimum entitlement to remuneration of all employees within its coverage, including those working as pieceworkers. A contrary construction should not be adopted because to do so would entail an acceptance that the AIRC ignored or failed to perform the statutory tasks required of it. 75 The primary Judge was cognisant of the requirement that modern awards must provide a fair minimum safety net of terms and conditions (see at [24]). As I perceive it, it was in the context of that recognition (at [140]) that his Honour considered that cl 15.2 was protective of employees and is to be construed as imposing an obligation on an employer to pay the prescribed piecework rate "at least at the minimum level". 76 The primary Judge's rejection of the construction contended for by the FWO is the subject of ground 1(a) of the FWO's Notice of Appeal. On the construction contended for by the FWO, an employee who is not a party to an agreement which requires the payment of the prescribed piecework rate is entitled to be paid the minimum hourly rates provided by cl 14 or cl 16 (junior employees) as well as, where applicable, other entitlements to remuneration including for work on public holidays and a casual loading. 77 The position adopted by the primary Judge and the construction contended for by the FWO give rise to constructional choices. 78 The available constructional choices should be resolved by reference to the text of cl 15, construed in light of its context and purpose. Additionally, the historical predecessor provision to cl 15 and the reason or reasons of the AIRC for the amendment of cl 15 into the form presently under consideration, are relevant. 79 Dealing with context, and in particular, the structure of the Award, it is convenient to commence with those arrangements made by the Award which put in place what I would call a "time-based system of remuneration". 80 Clause 14 of the Award is headed "Minimum Wages". The clause specifies the minimum weekly or hourly wage for "an adult employee" and, in conjunction with Schedule C and D, the minimum rates of pay for employees on a "supported wage" or a "training wage". Clause 16 deals with the minimum rate of pay for junior employees. Clause 22.1 specifies the ordinary hours of work. Clause 22.2 provides for shift work and a penalty payment for the working of an afternoon or night shift. Clause 23 provides for meal breaks including for the payment of penalty rates if work is required to be performed during a meal break. Clause 24.2 provides for overtime to be worked at penalty rates. Clause 28.3 provides for work performed on public holidays to be paid at penalty rates. Clause 10.4 deals with the payment of a casual loading. 81 These clauses are part of a time-based system of remuneration under which an employee is remunerated by reference to the number of hours worked and the time when work is performed. Time-based remuneration is standard in awards and industrial agreements. However, some awards, including the Award, provide for employers and employees to elect to be remunerated by reference to the work tasks performed by the employee rather than the time spent working. Employees remunerated under that system are commonly referred to as pieceworkers. Clause 15 of the Award provides for work to be remunerated under such an alternative remuneration system. 82 Access to time-based entitlements under the Award require no election to be made that the work of the employee be remunerated by reference to the time-based system of remuneration in the Award. In contrast, access to the task-based system of remuneration under the Award requires the agreement of the employer and the employee. That is addressed in cl 15. It may be expected, therefore, that given that a time-based system of remuneration is the default position under the Award, that the Award would provide for that system to become inoperative should a piecework-based remuneration system be engaged and operative in respect of the work performed by a particular employee. That cl 15 adopts that position, is reflected in the terms of cl 15.4 and cl 15.5 (although not as comprehensively as it might have been). 83 Having set out the basic structure, it is convenient then to examine the history of cl 15. 84 The Award was first made by the AIRC on 3 April 2009 pursuant to a decision of that date ([2009] AIRCFB 345). The Award was made on the basis that it would not commence its operation until 1 January 2010 (when ss 45-49 of the FW Act dealing with modern awards commenced). When first made, cl 15 of the Award relevantly provided (emphasis added): 15.1 A full-time, part-time or casual employee may enter into an agreement to be paid piecework rates instead of the rate of pay which would otherwise apply to the type of employment and to the work performed by the employee. 15.2 Work may only be paid for at piecework rates where the piecework rates fixed by agreement enable the average employee working the ordinary hours of work to earn at least 15% more than the minimum hourly rate prescribed by this award for the type of employment and the work to be performed. 15.3 The piecework rates fixed in accordance with the requirements of these provisions will be paid for all work performed in accordance with the piecework agreement. 15.4 Where the earnings of an employee paid at piecework rates fall below the ordinary time rates prescribed by this award for more than three consecutive ordinary working days, the piecework agreement may be terminated by either party. 15.5 Agreements for payment by piecework rates must be recorded in writing and signed by the employee and the employer. The agreement must record the type of employment of the employee, the work to be performed, the appropriate minimum hourly rate for the type of employment and work to be performed, the times when the work is to be performed, the piecework rate payable and the duration of the agreement. 15.6 In no case will a full-time, part-time or casual employee working under a piecework agreement be paid less than the prescribed ordinary rate payable to the employee for the hours of worked performed. 85 Before the Award commenced its operation, it was varied including by the wholesale replacement of cl 15 with a new clause in the form of that presently under consideration. That variation occurred pursuant to a decision of the AIRC made on 23 December 2009 ([2009] AIRCFB 966) upon the AIRC resolving two variation applications. What was in issue between the industrial parties to the Award is set out at [18] and [19] of the AIRC's decision. Although the terms of the former cl 15 were wholly replaced, it would seem from the matters at issue between the parties and the reasons given by the AIRC that, by the variation, the AIRC intended to make one substantive change. That change is reflected in the removal of the terms of the former cl 15.6 and the insertion of the terms thereafter found in cl 15.9. The effect of that change was to remove the former guarantee given to an employee working under a piecework agreement that the employee would not be paid less than the prescribed ordinary rate payable to the employee (for example under cl 14) for the hours of work performed. For current purposes nothing of significance turns on that change. The other change that may be noted, but which was not the focus of the AIRC's reasons, is that an additional requirement was added that the agreement must have been genuinely made without coercion or duress. That addition is reflected in cl 15.6. The addition of that safeguard is of some relevance for current purposes. What is also of significance for current purposes is that the former cl 15.1 to cl 15.3 addressed subject matters which are then addressed by cl 15.1 to cl 15.5 in the amended Award without any suggestion in the decision of the AIRC that the matters there addressed were intended to be materially altered. 86 There is a conceptual difference of some importance between the construction adopted by the primary Judge and that contended for by the FWO. On the primary Judge's construction of cl 15.1 to cl 15.5, once an employer and an employee elect by an agreement that the employer be paid under a piecework arrangement (whether compliant or not with the requirement contained in cl 15.2 that the rate of pay be at least the prescribed piecework rate), cl 15 is engaged and the time-based system of remuneration in the Award is rendered inapplicable to that employment. On the FWO's approach, cl 15 is only engaged and the time-based system of remuneration is only rendered inapplicable, where an agreement compliant with the requirements of cl 15 exists, including the requirement in cl 15.2 that the piecework rate fixed by the agreement is at least the prescribed piecework rate. 87 In my view, and with respect to the primary Judge, the view that he adopted is, by reference to the text, context and history of cl 15, not the preferable construction. I appreciate and should record that, in my view, the primary Judge was at least to some extent led into error by the way in which the FWO put its contentions. Additionally, it does not appear that the primary Judge had the benefit of being taken to the history of cl 15. 88 There are a number of reasons why I differ from the approach taken by the primary Judge. First, the structure of the Award shows that cl 15 makes available an exception to the standard remunerative scheme of the Award. On the approach taken by the primary Judge, the exception becomes operative on the mere election of the employer and the employee for the employee to be paid a piecework rate. However, the text of cl 15 does not merely refer to an election. It requires an agreement and makes specific provision for both the content of the agreement and the manner in which it is to be made. It requires an agreement that is signed and in writing, genuinely made without coercion or duress and which includes as a term, an obligation that the employer pay at least the rate specified in the first sentence of cl 15.2: see cll 15.2, 15.6 and 15.7 (and where applicable in relation to a casual employee, cl 15.3). The ordinary meaning of the text of cl 15 as well as the discernible purpose of the clause, on which I will say more of shortly, supports the view that those requirements are intended as safeguard conditions necessary to engage the operation of cl 15. They are not merely requirements the breach of which may be subject to penalty. 89 In my view, the first sentence of cl 15.2 is descriptive of the requisite content of an agreement necessary to engage the operation of cl 15. In contrast, the primary Judge (incorrectly and at the behest of the FWO) treated the first sentence as having different work to do. His Honour construed that first sentence as being merely proscriptive - as imposing an obligation upon the employer to make an agreement with the employee in which the rate fixed was at least the prescribed piecework rate. The primary Judge determined that the consequence of a breach of that obligation was a contravention of s 45 of the FW Act and exposure to a civil penalty. 90 Whilst I appreciate that the mandatory language in the first sentence of cl 15.2 ("must enable") lends some support to the view that the sentence is proscriptive, that text is entirely consistent with a description of a necessary condition for the engagement of cl 15. It describes what the necessary condition "must enable". 91 It is unlikely that the sentence was intended to be proscriptive because a breach thereof would be a breach by both the employer and the employee. It would be entirely surprising if a provision intended to be protective of employee entitlements, was also intended to make an employee liable to a civil penalty for having made an agreement which provided for the employee to be paid less than the prescribed piecework rate required by the Award. Furthermore, the primary Judge's approach involves the employer being penalised once for failing to make an agreement by which it is required to pay the prescribed piecework rate (under the first sentence of cl 15.2) and then penalised again for not paying the prescribed piecework rate under the second sentence of cl 15.2. Again, that consequence is unlikely to have been intended. 92 The better view is that the first sentence of cl 15.2 imposes no obligation at all but is intended to be descriptive of what an agreement must contain to be capable of engaging cl 15 and displacing the standard remuneration obligations in the Award. Once that is realised, what seems to have been the primary Judge's main reason for rejecting the construction which I prefer, falls away. On the construction I prefer, there would be no conflict with the principle identified at [147] of the primary Judge's reasons, to the effect that where legislation provides for a penalty in the event of non-compliance with a statutory command, it is presumed that the statutory penalty is intended to cover the field in terms of consequences and not render acts in contravention of the statute illegal or invalid. 93 Second, the construction that I prefer, is consistent with the language of cl 15.1 to cl 15.3 of the historical predecessor of cl 15. In particular the text in the former cl 15.2 makes it clear that the clause is only engaged (ie "Work may only be paid for at piecework rates") "where the piecework rates fixed by agreement enable [the employee to earn the prescribed piecework rate]". That requirement is clearly a condition on the capacity of the employer to utilise the piecework payment arrangements provided by the clause. As I have said, there is no indication in the relevant decision of the AIRC that the operation and effect of those former sub-clauses was intended to be materially, let alone fundamentally, changed. 94 Third, the construction I prefer permits the second sentence of cl 15.1 to be given its plain meaning. Where a compliant agreement (an agreement with the content required by the first sentence of cl 15.2) is extant, the second sentence of cl 15.2 obliges the employer to pay the "piecework rate agreed" to be paid under the agreement. On the construction I prefer, "the piecework rate agreed" means precisely that. 95 In contrast, the primary Judge's approach requires a non-grammatical construction which, in essence replaces the phrase "the piecework rate agreed" in the second sentence of cl 15.2 with the phrase described by the primary Judge (at [145]) as "the minimum piecework rate" being not the rate actually agreed but the rate that should have been agreed as a minimum to comply with the requirement of the first sentence of the clause. 96 The reasoning of the primary Judge for that view is set out at [138]-[140]. There are in my respectful view two difficulties. First, the primary Judge's analysis at [138]-[139] entirely ignores the possibility that the actual rate agreed under the agreement made by the employer and the employee may be higher than the minimum prescribed piecework rate. The primary Judge's preferred construction does not encompass that possibility and would result in there being no obligation for the agreed rate to be paid where the agreed rate is higher than the minimum prescribed piecework rate. 97 Second, I appreciate that the primary Judge would have been entitled to strain for his preferred construction in order to enable the intended purpose of the provision to be achieved. As I said in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2 at [91] by reference to a survey of the authorities (dealing with statutory construction but nevertheless here applicable), recourse to context (including purpose) may disclose that the ordinary grammatical meaning of the words used was not intended. The primary Judge justified his adoption of an ungrammatical meaning of the word "agreed" by reference to what his Honour regarded was disclosed by the intended purpose of the Award. In that regard the primary Judge said this at [140]: The piecework provisions of the Award, seen as a whole, attempt to balance the interests of employers with the risk that employees will be left vulnerable to exploitation. However, the requirements to fix and pay at least minimum piecework rates are protective of employees, and cl 15.2 should be construed in light of that protective purpose. 98 I respectfully agree with the primary Judge that the Award seeks to balance the interests of employers to have work performed efficiently with, as the primary Judge put it, "the risk that employees will be left vulnerable to exploitation". That risk is manifest where remuneration is fixed by reference to the valuation of the work task rather than the certainty and clarity of a time-based payment, particularly where the information necessary to undertake the valuation is unlikely to be known or understood by the employee. The formula for fixing the piecework rate in cl 15.2 is a testament to the vulnerability of the employee and therefore the capacity for exploitation involved in the piecework-based system of remuneration provided for by the clause. 99 It is for that reason that, in my view, rigorous safeguards have been intentionally built in so that cl 15 is not engaged without the conditions required by cl 15.1 to cl 15.7 being satisfied. Rather than support the purpose the primary Judge correctly identified, his Honour's construction serves to undermine the effectuation of that purpose. 100 A construction which better effectuates that purpose is the construction which I prefer. That construction is also to be preferred because, and importantly, it is faithful to both the text and intended operation of the clause as reflected by the history of the provision. It is helpful to recall the observations made by Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (1981) 147 CLR 297 at 321: If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended. 101 Accordingly, ground 1(a) of the FWO's Notice of Appeal should be upheld. 102 Ground 1(b) asserts error in the primary Judge's determination that cl 15 is operative despite an agreement not being in writing as required by cl 15.7 of the Award. It follows from my reasoning in relation to ground 1(a) that if this ground is to be entertained the ground should also be upheld. A question arose on the appeal as to whether this ground has been raised inconsistently with the way the FWO ran its case below. I shall return to that issue later. 103 Grounds 2 to 12 and ground 14 deal with the extent of the contraventions of cl 15.2 found by the primary Judge and the asserted accessorial liability of the Second Respondent ("Marland Mushrooms") and the Third Respondent ("Mr Marland") for the primary contravention by the employer HRS Country of cl 15, as found by the primary Judge. Contrary to the conclusion that I have arrived at, each of those grounds is based on the proposition that a failure to make an agreement compliant with cl 15.2 involves a contravention of that clause. For that reason, each of those grounds should be dismissed. In those circumstances it also becomes unnecessary to deal with the Amended Notice of Contention of Marland Mushrooms and Mr Marland. 104 That leaves appeal ground 13 which relevantly asserts that the primary Judge erred in failing to find that HRS Country contravened the following provisions of the Award: (1) clause 14.1 of the Award dealing with the minimum rates of pay for adult employees; (1) clauses A.2 and A.3 of Schedule A and 16.1 of the Award dealing with minimum rates of pay for junior employees; (2) clauses 28.3 and A.7 of Schedule A of the Award dealing with rates of pay on public holidays; (3) clauses 10.4(b) and A.5 of Schedule A of the Award dealing with the casual loading; and (4) clause 23.2 of the Award dealing with rest breaks. 105 Appeal ground 13(b) alleges that the primary Judge erred in failing to find Marland Mushrooms and Mr Marland accessorily liable for the contraventions of HRS Country referred to in appeal ground 13(a). 106 Having come to the view that cl 15 was operative and that therefore the obligations imposed by the Award on HRS Country in relation to time-based workers were inapplicable, the primary Judge (at [149]) rejected the FWO's case that the Award provisions the subject of appeal ground 13(a) were contravened by HRS Country. The primary Judge did not expressly address whether Marland Mushrooms and Mr Marland had contravened those provisions as accessories. However, the primary Judge's implied rejection of that part of the FWO's case must follow from his Honour's rejection of the FWO's case that the primary contraventions by HRS Country had occurred. Consequently, the primary Judge made no findings of contravention by HRS Country, Marland Mushrooms or Mr Marland of those provisions of the Award. 107 In so far as appeal grounds 13(a) and (b) contest the primary Judge's rejection of the FWO's case that HRS Country, Marland Mushrooms and Mr Marland contravened the award provisions specified in appeal ground 13(a), those grounds of appeal should be upheld in part. Although those grounds express the primary Judge's error as being a failure to find contraventions of the Award, they must be understood as at least in part raising, as an error, the primary Judge's rejection of the contraventions asserted by the FWO. 108 Having adopted the construction of cl 15 which he did, the primary Judge regarded the provisions which the FWO asserted had been contravened as inapplicable. For that reason, his Honour appears to have given no further consideration to whether the contraventions asserted were made out on the evidence. As I consider that his Honour was wrong to regard the award provisions relied upon by the FWO as inapplicable, I consider that his Honour was wrong to reject the primary and accessorial contraventions contended for by the FWO on that basis. 109 That conclusion does not, however, mean that findings of either primary or accessorial contraventions of the provisions listed in appeal ground 13(a) should have been made. 110 An issue arises as to whether it would be appropriate for those matters to be determined on appeal or alternatively be remitted to the primary Judge for determination. Ordinarily, considerations of the kind here in question are best left to be determined by the primary Judge. There is however a question in my mind as to whether, given the way that the FWO's case was run below (including the manner in which it was pleaded) in relation to accessorial liability, there would be futility in remitting to the primary Judge the task of determining whether Marland Mushrooms and Mr Marland contravened the Award provisions listed in appeal ground 13(a). 111 In circumstances where the majority view of the Court is that the appeal should be dismissed, there is no utility in me resolving that question or the issue earlier raised as to whether the FWO requires the Court's leave to agitate appeal ground 1(b). 112 For all of those reasons, I would uphold appeal ground 1(a) and, assuming that the question of leave was resolved in the FWO's favour, uphold appeal ground 1(b). I would also uphold, in part appeal grounds 13(a) and (b). I would otherwise dismiss the appeal. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

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